Friday, July 13, 2012

Was NJ appellate court's 'de minimis' ruling a big deal?

In a decision last week that has raised both concern and speculation, a New Jersey appellate court ruled that owners of properties containing small amounts of pollution do not have to prove the properties are clean before selling them.  

The New Jersey Sierra Club responded with an immediate declaration that the court had  "ruled in favor of polluters over the public health."

With over 20,000 contaminated sites in the state, virtually all residents will be impacted by this Court decision," warned Sierra Club Director Jeff Tittel. 

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Sounds pretty drastic, doesn't it? 

Yes, except for the fact that the 
appellate panel took pains to note that their decision would not have a wide environmental impact. The court wrote that the decision answered
 a “narrow question” over whether the DEP was authorized to adopt such a regulatory requirement under applicable state environmental cleanup laws, primarily ISRA, the Industrial Site Recovery Act of 1993.

In its July 6 decision, the court also suggested a way to fix the problem, noting that the state Legislature could act to “explicitly and unambiguously” require such cleanup assurances (by amending the law) or lawmakers could give the DEP the power to adopt and enforce those types of regulations.

The court also stayed its decision for 30 days, giving the state time to decide whether to appeal.  

In a bulletin to clients of the firm, Cole Schotz environmental attorney Gerard M. Giordano writes:
"There has been much press recently indicating that this is a big “win” for business.  However, the reality is that this is a very limited decision with very limited applicability.  
 "The ISRA statute specifically allows an exemption to its requirements if an applicant can show that it handled less than certain specific quantities of hazardous substances.  NJDEP added one more requirement while updating the regulations promulgated under the statute; that the applicant must also certify to the best of their knowledge that the property is not contaminated. Simply put, the court found that NJDEP's additional requirement was not authorized by the ISRA statute, and that NJDEP went beyond the bounds of its authority when it adopted that regulation.
"This decision does not change the fact that if there is contamination at the property, the owner or operator may still be required to investigate and cleanup the contamination under other environmental statutes."
You can read Mr. Giordano's full comments here.

We haven't heard yet whether the state will appeal the decision, but we suspect that some industrious state legislator is already drafting legislation to supply the DEP with the authority to implement the regulation that the court has invalidated.

We'd love to hear from other legal experts--and non-attorneys, too--on the issue. Please use the comment box below. If one is not visible, activate it by clicking on the tiny 'comments' line.

Related environmental news: 

Court: New Jersey sellers need not prove properties clean

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